Mark Lattimer, Shabnam Mojtahedi and Lee Anna Tucker

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

CEASEFIRE centre for civilian rights

Cover photo: Mother visits the grave of her son at ‘Martyrs’ Cemetery’ in Dar’a al-Balad, Daraa, 6 March 2014. © Lens Young Horany www.facebook.com/Lens.Horany

Ceasefire Centre for Civilian Rights The Ceasefire Centre for Civilian Rights is a new initiative to develop ‘civilian-led monitoring’ of violations of international humanitarian law or human rights, to pursue legal and political accountability for those responsible for such violations, and to develop the practice of civilian rights. The Ceasefire Centre for Civilian Rights is registered as a charity and a company limited by guarantee under English law; charity no: 1160083, company no: 9069133. The assistance of the Sigrid Rausing Trust is gratefully acknowledged.

Syria Justice and Accountability Centre The Syria Justice and Accountability Centre (SJAC) is a Syrian-led, multilaterally supported nonprofit that envisions a Syria defined by justice, respect for human rights, and rule of law — where citizens from all components of Syrian society live in peace. SJAC promotes transitional justice and accountability processes in Syria by collecting and preserving documentation, analyzing and cataloging data, and promoting public discourse on transitional justice — within Syria and beyond. Learn more at www.syriaaccountability.org.

Acknowledgements With thanks to Mohammad Al Abdallah and two anonymous reviewers. Additional research assistance: Shikha Dilawri and Matt Mermel.

© Ceasefire Centre for Civilian Rights April 2015 Report designed by Staša Sukič. Material from this publication may be reproduced for teaching or other non-commercial purposes, with appropriate attribution. No part of it may be reproduced in any form for commercial purposes without the prior express permission of the copyright holders. Published April 2015. Printed in the UK on recycled paper.

Table of contents

Executive summary

4

Introduction

8

The conflict and crimes under international law

1

Available legal avenues International courts

9

11 11

The International Criminal Court

Hybrid tribunals

13

Hybrid tribunal for Syria in a neighbouring state ‘Buffer zone’ jurisdiction for a hybrid tribunal for Syria The Special Tribunal for Lebanon

Criminal prosecutions in foreign national courts

16

Active nationality principle Passive nationality principle Protective principle Universality principle Treaty-based extraterritorial jurisdiction Limitations on extraterritorial jurisdiction

Civil actions in foreign national courts

2

3

Practical and ethical challenges

21

23

In absentia trials

23

Investigative access

24

Witness protection

24

Ownership and capacity building

25

Impartiality

25

Double jeopardy

26

Failure could cause disillusionment with justice

26

Conclusions

28

Endnotes

31

Bibliography

33

Executive summary

As the war in Syria enters its fifth year, the urgency has increased for delivering some measure of justice to the victims of atrocities. This report aims to evaluate current accountability options by looking at the feasibility and potential impacts of each option. Analysis of the existing options helps shed light on whether it may be advisable to pursue justice while the conflict is ongoing and, if so, which methods are best suited for the current situation. By evaluating the positive and negative impacts as well as the practical and ethical concerns that could arise, this report aims to better inform the international community’s role in justice and accountability for Syria.

International Criminal Court Located in The Hague, the Court has the jurisdiction to prosecute war crimes, crimes against humanity and genocide. However, Syria is not a state party and without a UN Security Council Resolution the Court’s jurisdiction is limited. In May 2014, Russia and China vetoed a draft resolution to refer Syria’s situation to the ICC. Nevertheless, the door has not completely closed. Acting on her own initiative or on a referral by a state party, the ICC Prosecutor can investigate crimes allegedly committed in Syria by the nationals of any state party. Many states parties have nationals fighting in Syria, so although the investigation would be limited in scope, ICC involvement is still theoretically possible. Feasibility — Under the policy of the Of-

Impacts — Without jurisdiction over the

fice of the Prosecutor, investigations are

entire Syrian situation, an ICC investiga-

focused on those who bear the greatest

tion could have a negative impact on the

responsibility for crimes. As a result, low-

justice process in Syria if those most cul-

level foreign fighters who travel to Syria

pable are perceived to remain immune

are unlikely to be prosecuted. In practise,

from prosecution. Syrians would lose

unless a high-ranking foreign member

confidence in the international justice

of an extremist group or a senior Syrian

system, thus eroding the impact the ICC

official with dual nationality comes un-

could have in the post-conflict period.

der the ICC’s jurisdiction, the ICC is not a

Even if a full referral were currently pos-

feasible forum currently for pursuing ac-

sible, President Assad and his officials

countability in the Syrian context.

could remain at large and the ICC’s inability to affect the duration and severity of the conflict may cause disillusionment among Syrians.

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

Hybrid tribunals Hybrid tribunals offer the flexibility to combine international and domestic laws and processes while also potentially allowing for the prosecution of a greater number of perpetrators. However, a hybrid tribunal requires consent of the host state or a UN Security Council resolution. Thus, the main options while the conflict is ongoing would be to establish the hybrid tribunal in a neighbouring state or within an internationallyprotected buffer zone inside of Syria. A third option would be for the Special Tribunal for Lebanon to expand its investigation to high-level Syrian officials in so far as their cases related to the Hariri assassination of 2005. Feasibility — A hybrid tribunal is not a

Impacts — A hybrid tribunal in the pre-

currently feasible route for achieving ac-

transition period would lack impartiality

countability for victims of the Syrian cri-

given that both Syria’s neighbours and

sis. A hybrid tribunal in a neighbouring

the Syrian opposition authorities have

country would require consent from the

political interests in the conflict. There

host state, and Turkey and Jordan are

is therefore a large risk that the tribunal

unlikely to want to extend their criminal

would pursue a one-sided application

jurisdiction over Syrian matters. As for a

of justice. Furthermore, the tribunal will

buffer zone tribunal, the international

have limited ability to access perpetra-

community has taken no steps towards

tors, witnesses and other evidence inside

establishing a protected, no-fly zone in

Syria. As a result, most Syrians may not

northern Syria. In either case, the secu-

accept the decisions of the tribunal, par-

rity concerns and high costs of the tri-

ticularly if there is no consensus on which

bunal may not be worth the limited ap-

law should be applied, decreasing confi-

plication such a tribunal would have if it

dence in the chances for comprehensive

could not effectively function across the

justice and accountability post-conflict.

whole of Syria.

Criminal prosecutions in foreign national courts National prosecuting authorities in foreign countries may be able to pursue criminal investigations into crimes that occurred in Syria so long as they fall under one of several principles of extraterritorial jurisdiction. The active nationality principle would allow a state to prosecute its own nationals for crimes committed in Syria. In contrast, the passive nationality principle allows a state to prosecute individuals who commit-

5

6

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

ted crimes against its nationals. The protective principle enables a state to prosecute anyone, regardless of nationality, if the crime has a significant impact on its security or national interests. The universality principle, the most expansive of the four, requires no nexus between the prosecuting jurisdiction and the individual, in cases involving the most serious crimes of international concern. However, there are some limitations in applying these principles in relation to crimes committed in Syria. Extraterritorial jurisdiction is also established by multi-lateral treaties aiming at the suppression of particular crimes, including torture. Feasibility — Criminal prosecutions

Impacts — If presented as a first step

in foreign national courts are the most

towards accountability, criminal pros-

feasible option for pursuing accountabil-

ecutions in foreign national courts can

ity in Syria in the pre-transition period.

have a positive impact on Syria as long

Even though the scope of prosecutions

as investigations are not restricted only

would be limited, they provide a low-

to opposition figures and counter-ter-

cost method of accountability that can

rorism cases. The most impact would be

be readily implemented. However, sov-

achieved if several jurisdictions worked

ereign and state immunities create some

in coordination while also making pub-

obstacles for holding high-level officials

lic efforts at connecting Syrians with the

accountable.

process.

Civil actions in foreign national courts Like criminal prosecutions, civil actions can be undertaken in other countries to provide monetary remedies to individuals who have been victimized during the conflict. A country’s ability to try a tort claim will depend on its national legislation. The United States, for example, allows for torture claims under its Torture Victim Protection Act (TVPA). Feasibility — Civil actions face greater

Impacts

state immunity obstacles than criminal

criminal accountability, the greatest

cases, but still could be potentially feasi-

risk of civil actions may be the potential

ble, particularly if filed against individu-

perception that victims are being paid

als and not against the Syrian state itself.

off with ‘blood money’. However, if civil

A large obstacle would be how to collect

actions are undertaken in tandem with

on the judgments, raising the question of

criminal prosecutions, they could have

whether accessing frozen assets would

an overall positive impact – particularly if

be an appropriate means for doing so.

the judgments are for symbolically large

—

Without

corresponding

amounts.

Both practical and ethical challenges hamper the application of the accountability mechanisms described above. For perpetrators that remain protected within Syria, trials would need to be carried out in absentia, which is not a uniformly accepted pro-

7

cedure under international standards. Moreover, if more than one jurisdiction decides to try a suspect, double jeopardy becomes an issue. In addition to limited access to perpetrators, the active conflict limits investigators’ access to valuable forensic evidence and to witnesses. Relying on witness evidence also places a duty on the prosecuting jurisdiction to ensure protection for witnesses and their families, which may not be possible for those still residing in Syria. And although trials in the conflict period may promote accountability for Syria, they will do little in terms of national ownership or capacity building, two important aspects of any transitional justice process. Furthermore, the politicized nature of the conflict and the plethora of international actors involved would mean that few of the current options would be viewed as impartial by the majority of Syrians. Most importantly, any attempt to impose justice which failed to achieve fair convictions or to fulfil its promises may cause Syrians to become disillusioned with formal justice mechanisms, increasing the potential that they take justice into their own hands in the post-conflict period. Several conclusions based on the analysis of current options should inform efforts to pursue accountability during the conflict:

Postponing justice is preferable to a flawed process — Despite the urgency of pursuing accountability immediately, postponing justice is preferable to an inherently flawed process, even if it means waiting several years for Syrians to see justice for the atrocities they have suffered. A justice process that fails to meet the needs of victims and creates disillusionment with formal judicial processes will very likely damage long-term prospects for transitional justice in Syria. Prosecutions in foreign courts are most feasible currently — If steps are taken towards accountability in the pre-transition period, prosecutions in foreign national courts are the most feasible option. Such prosecutions may chip away at impunity, provide recourse to some victims, help maintain pressure internationally for broader accountability and prevent political rehabilitation of the highest-level perpetrators. Current accountability processes should try to connect with Syrians — Under any accountability mechanism, the process should include a way to connect and interact with Syrians who have been affected by the violence. This will help to ensure that the process can contribute to future mechanisms that address the rights of the Syrian people who have experienced violations, and forestall misconceptions about the international community’s motivations. Impartiality of current processes will affect long-term prospects for justice — The impartiality of the justice process is very important for the prospects of long-term justice and accountability in Syria. Actual and perceived bias could prevent comprehensive justice in a post-conflict Syria, and provoke increased violence now. Accountability mechanisms should focus on delivering justice for the most serious crimes under international law, rather than targeting mere participation in the conflict or focusing exclusively on terrorist-related activity.

Introduction The war in Syria is entering its fifth year with no end in sight. Regular allegations of mass atrocities continue to be made against both Syrian government forces and armed opposition groups. With almost a year passed since the UN Security Council failed to pass a draft resolution to refer the Syrian situation to the International Criminal Court, the need to establish some form of accountability to address the widespread allegations of mass abuses remains pressing.

This briefing paper considers the current options for seeking

The options presented here are steps towards the path of

justice for crimes under international law committed in Syr-

justice and methods for achieving some limited accountabil-

ia. While the feasibility of the most prominent mechanisms

ity during conflict. They should not be interpreted as stan-

for justice – the ICC and domestic courts – is currently limit-

dalone measures to secure justice for Syrians. If the interna-

ed, alternative possibilities for securing accountability exist

tional community does not approach such measures as part

absent a Security Council referral or a post-conflict transi-

of a larger, comprehensive justice process, any action could

tion in Syria. The purpose of this briefing is to outline the

adversely affect perceptions of justice inside Syria.

potential ‘pre-transition’ options for accountability and to discuss the feasibility and implications of each. Such options

Following a political transition, a wider range of transitional

include: other methods of engaging ICC jurisdiction without

justice mechanisms may become possible, including Syria’s

a Security Council referral; the establishment of a special

ratification of the Rome Statute of the ICC, the establishment

or mixed-law tribunal in a neighbouring state or in a ‘safe

in Damascus of a special tribunal to try past crimes, domes-

zone’ in Syria; prosecutions in foreign national courts under

tic prosecutions, judicial inquiries or truth commissions,

one of five forms of extraterritorial jurisdiction; and civil ac-

national civil reparation programmes, memorialization

tions for damages in foreign national courts. The scope of

projects, lustration or ‘de-Ba’athification’ programmes, and

this briefing is limited to establishing individual account-

broad security sector reforms. A debate over which of these

ability for conduct amounting to war crimes, crimes against

methods, or combination of them, is appropriate has already

humanity, or other crimes under international law. Military

begun,1 but they all depend on the outcomes of a future tran-

or ‘humanitarian’ intervention and other coercive measures

sition.2 But the prolongation of the conflict raises the urgent

at the state level are not covered.

question of which accountability options may be available

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

now, before any future transition of power. This

criminal law (including the law of the Rome Stat-

briefing is therefore concerned with the specific is-

ute). A detailed account of the alleged crimes un-

sue of whether it is possible – or indeed advisable –

der international law committed by each party to

to seek international justice for egregious crimes in

the conflict both before and during the course of

Syria while conflict is ongoing.

the Syrian war is beyond the scope of this briefing, but the scope of potential crimes encompasses al-

The conflict and crimes under international law

most every area of international criminal law. The Independent International Commission of Inquiry on the Syrian Arab Republic, established by the UN Human Rights Council, stated in its eighth report that government forces ‘continued to perpetrate massacres and conduct widespread attacks on civilians, systematically committing murder, torture,

Syria has lived under Ba’ath Party rule since 1963,

rape and enforced disappearance amounting to

for most of that time under the leadership of Hafez

crimes against humanity’ and also committed ‘the

al-Assad and, since 2000, his son Bashar al-Assad.

war crimes of murder, hostage-taking, torture, rape

As part of the ‘Arab Spring’, anti-government pro-

and sexual violence, recruiting and using children

tests started in Syria early in 2011. Demonstrations

in hostilities and targeting civilians,’ as well as the

in Damascus and Deraa in March were met with vi-

use of chemical weapons and ‘indiscriminate and

olence and, as the protests spread across the coun-

disproportionate aerial bombardment and shelling

try, hundreds of protesters were killed and a num-

[that] led to mass civilian casualties.’ The Commis-

ber of towns were subjected to military blockades.

sion of Inquiry stated that non-state armed groups,

Some opposition supporters joined with defectors

including ISIS, ‘committed massacres and war

from the Syrian armed forces to form the opposi-

crimes, including murder, execution without due

tion Free Syrian Army at the end of July 2011. Since

process, torture, hostage-taking, violations of inter-

then the number of armed actors in the conflict

national humanitarian law tantamount to enforced

has proliferated, including the active involvement

disappearance, rape and sexual violence, recruit-

of a number of states in the region, and the com-

ing and using children in hostilities and attacking

mencement in September 2014 of US-led airstrikes,

protected objects’ as well as forcible displacement

triggered by the growing threat to the region posed

and other conduct that could amount to crimes

by the Islamic State of Iraq and al-Sham (ISIS)3 and

against humanity.4

other extremist Sunni groups. These atrocities constitute a wide range of interThe conflict is not only bloody, but multi-dimen-

national crimes and implicate most of the parties

sional, engaging several areas of international

fighting in Syria. The scale of the violence and the

law, including international human rights law, in-

current political and military stalemate have made

ternational humanitarian law and international

it urgent to pursue some form of justice prior to the

9

10

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

end of the conflict. The legal avenues for achieving

uates the feasibility of each mechanism, keeping in

justice presented below are possible ways to hold

mind the realities of the conflict and the types of

perpetrators of these crimes accountable without

crimes punishable under international law. 

waiting for the end of the conflict. This report eval-

1

Available legal avenues In theory, several legal avenues towards justice and accountability for violations of international human rights, humanitarian, and criminal law exist. These include the International Criminal Court, hybrid tribunals, and legal actions in foreign jurisdictions. However, a variety of factors such as the international political climate and ongoing conflict conditions influence the current feasibility of such avenues. Additionally, embarking upon these avenues could have many impacts on overall justice and accountability for Syria, both positive and negative, depending on how the proceedings are pursued.

Available legal avenues, their current feasibility, and their

The International Criminal Court

potential justice impacts are discussed below. One option that is not covered here is the use of Syrian national courts;

On 22 May 2014, a draft resolution of the UN Security Council

although this is a desirable option post-conflict given suffi-

to refer the situation in Syria to the ICC was vetoed by two

cient judicial capacity and favourable security conditions,

permanent members, Russia and China. Many saw the veto

the option would be near impossible to implement currently.

as a total block to the ICC’s jurisdiction over Syria. However, a Security Council resolution is only one method of invoking

International courts

ICC jurisdiction. Situations in which crimes appear to have

Of the several international courts now in existence, the In-

vestigation by the Prosecutor acting in proprio motu (under

ternational Criminal Court (ICC) is the only one that could

her own initiative).6 However, unless the Security Council

potentially exercise criminal jurisdiction over perpetrators

makes a referral, the ICC can only exercise jurisdiction in the

of international crimes committed in Syria. Although the

territory of, or over the nationals of, those states that have

International Court of Justice (ICJ) has been discussed as a

ratified the Rome Statute or made a declaration accepting

possible forum for addressing the Syrian state’s failure to

the Court’s jurisdiction under Article 12(3). Therefore un-

meet international human rights obligations,5 the ICJ has no

less Syria decides to ratify the Rome Statute – an unlikely

criminal jurisdiction and cannot prosecute individuals, and

prospect – the ICC will have no territorial jurisdiction within

is therefore outside the scope of this briefing.

Syria or over persons with only Syrian nationality.

occurred can also be referred to the Court by any one of the states parties to the ICC’s Rome Statute, or be subject to in-

12

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

But many of the combatants fighting in Syria – in-

Jordan is estimated to have over 1,500 nationals

cluding those accused of committing crimes un-

fighting in Syria.11 It can be argued that Tunisia

der international law – may be foreign nationals

and Jordan may be unable or unwilling to pursue

or Syrians with dual nationality. Over 20,000 for-

these individuals due to national security concerns

eign nationals from as many as 80 countries are

or unwillingness prosecute their own nationals, in

believed to have been involved in the conflict as

which case the ICC could exercise jurisdiction.

7

of early 2015 and some of them are nationals of states parties, and therefore potentially subject to

Iraq is not currently a state party, but the involve-

ICC jurisdiction. For example, as many as 400 Brit-

ment of Iraqi nationals in the Syrian conflict has

ish nationals may be fighting in Syria, according to

grown with the rise of ISIS. The Iraqi government

the UK Foreign Secretary (including one national

is keen on ridding the country of the prevalent ISIS

believed to be involved in the high-profile killings

threat, increasing the prospect that Iraq accedes to

of US and British nationals).

the Rome Statute. Again, however, the ICC would

8

only have jurisdiction over Iraqi nationals or Iraqi However, under the complementarity provisions

territory, thus focusing any deterrent effect pri-

in Article 17 of the Rome Statute, a case will be

marily on Iraq rather than on Syria more broadly.

ruled inadmissible by the Court if it is, or has been, subject to a genuine investigation or prosecution

Even if the ICC initiates a preliminary investiga-

by a state with jurisdiction. Many of the European

tion into crimes allegedly committed in Syria by

states parties with nationals fighting in Syria may

foreign nationals of states parties, this may be able

contend that they are willing and able to prosecute

to target only low-level perpetrators. The ICC, how-

their own nationals accused of committing serious

ever, was established to try those with the greatest

crimes (although this, of course, may not be ac-

responsibility for atrocities. So while an investiga-

cepted by the Court). Non-European states parties,

tion may be a useful signal of intent and have some

including four that belong to the Arab League, may

deterrent effect, the Office of the Prosecutor is un-

be better ICC candidates.9 Tunisia, which became

likely to move forward unless the ICC can exercise

a state party in 2011, is believed to have at least

jurisdiction over state party nationals who have

2,400 nationals fighting in Syria, according to Tu-

acted as regime or opposition leaders.

nisia’s Interior Minister,

ICC: Potential impacts on justice and accountability

10

most of them with ISIS.

ICC option risks the prospect of those

Even if a full referral were currently

most responsible continuing to avoid

possible, whether an ICC investiga-

accountability, being seen to benefit

tion or indictment would deter Presi-

from impunity and damaging Syrians’

dent Assad and his officials is an open

confidence in international justice.

question, especially given the likeli-

The Court would in practise only be

hood that they would remain at large

able to investigate or prosecute for-

for some time. In either case, Syrians

eign nationals involved with ISIS or

would need to consider and establish

An ICC process could have positive im-

related groups, which would harm

other domestic justice mechanisms

pacts on justice and accountability for

the credibility and neutrality of the

to complement the ICC process, giv-

Syria only if the Court had jurisdiction

process in the eyes of Syrians. More

en the prolonged timeline and the

over the entire Syrian situation, in-

broadly, such a limited process could

limited number of individuals the

cluding over high-level perpetrators –

negatively affect worldwide percep-

Court would prosecute.

which is unlikely at this time. With-

tions of the international criminal jus-

out territorial jurisdiction in Syria, the

tice system as impartial and effective.

13 Hybrid tribunals

Hybrid tribunal for Syria in a neighbouring state

Following the establishment in the 1990s of the ad hoc International Criminal Tribunals for the

The idea of a tribunal created by the Arab League

Former Yugoslavia and for Rwanda, and then the

was suggested at least as far back as early 2012,14

International Criminal Court, the trend in interna-

but the Arab League has not taken any action to ad-

tional criminal law at the turn of the millennium

vance the idea despite its vocal condemnation of

moved to the creation of hybrid or mixed-law tri-

the situation in Syria. The former US Ambassador-

bunals, focusing on a particular state and combin-

at-Large for War Crimes Issues, David Scheffer, has

ing national and international elements. Hybrid

argued in favour of a tribunal which could cover

tribunals typically apply international criminal

both Syria and Iraq, explaining that, absent a Secu-

law and due process standards in conjunction with

rity Council resolution, this ‘would require a treaty

the domestic law of the state, and include both in-

between the United Nations (acting by General As-

ternational and local jurists. Moreover, such tribu-

sembly vote) and a government committed to jus-

nals tend to offer the possibility of trying a wider

tice for the victims... [which] would consent to the

range of cases than the ICC could manage, while

extraterritorial reach of its own law.’15 Scheffer’s

also encouraging greater national ownership of the

former deputy at the US State Department, Beth

process. Thus, mid- or low-level combatants that

Van Schaak, elaborated that such a tribunal could

ordered or participated in atrocities could also be

be based on two principles: first, the principle of

targeted by the hybrid tribunal system. Examples

universal jurisdiction, by which any state can pros-

of hybrid tribunals include the Special Court for

ecute anyone alleged to have committed crimes un-

Sierra Leone, the Extraordinary Chambers in the

der international law; second, the extraterritorial

Courts of Cambodia, and the Special Tribunal for

application of a state’s domestic jurisdiction under

Lebanon,12 all of which were established with the

the effects doctrine and the protective principle.16

active consent of the state concerned, following an

(The bases of extraterritorial jurisdiction are cov-

agreement with the United Nations.

ered in more detail below, but these international law principles might be argued by a neighbour-

International legal experts have already approached

ing state given the substantial effect that the Syr-

the idea of establishing a hybrid tribunal in Syria.

ian conflict has produced within its own territory

In August 2013 a group of jurists, including former

and the need to protect its own security or vital

chief prosecutors of international tribunals, drafted

interests.)17

the ‘Chautauqua Blueprint,’ which was intended for a Syrian Extraordinary Tribunal ‘to prosecute those

Nonetheless, convincing one of Syria’s neighbours

most responsible for atrocity crimes committed in

of the benefits of taking on this role would likely be

Syria by all sides of the conflict.’13 However, the doc-

a considerable challenge, because of the enormous

ument acknowledges that the tribunal could only

political commitment it would entail plus the finan-

operate within Syria ‘when the political situation

cial and logistical burden it would impose. Even as-

permits, presumably following a change in govern-

suming that a neighbouring state, such as Jordan

ment.’ Similarly to ICC jurisdiction, the establish-

or Turkey, could be convinced that its jurisdiction

ment of an ad hoc or hybrid tribunal requires either

should have extraterritorial reach, it is arguable

consent by the state or a UN Security Council reso-

whether such an initiative is possible as a matter

lution. However, the current Syrian government

of international law. Article 22 of the UN Charter

would not consent to a hybrid tribunal operating

does not go so far as to allow the General Assembly

on its territory and the Security Council will not be

to establish a subsidiary institution that extends

able to pass a resolution on the matter while Russia

beyond the power of the General Assembly itself,

remains aligned with the regime.

which, by carrying out criminal prosecutions, a hybrid tribunal would do.18 Under the ‘Uniting for

However, a debate has grown about other bases

Peace’ Resolution,19 the General Assembly can act

for establishing a special tribunal that would not

to maintain international peace and security when

require Syrian government consent, including the

the Security Council is deadlocked. While this res-

possibility of locating it in a neighbouring state or

olution provides a theoretical mechanism for the

in a ‘buffer zone,’ options discussed below.

General Assembly to circumvent a veto at the Se-

14

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

curity Council, using it to impose a criminal juris-

to the Turkish border. The government of Turkey

diction over the territory of a member state with-

has long advocated for the creation of a no-fly zone

out Security Council authorization would send the

to provide security to Syrians in opposition-held

General Assembly into uncharted waters. Moreo-

areas in the north. Furthermore, the UN Under-Sec-

ver, the permanent members of the Security Coun-

retary-General for Humanitarian Affairs has stated

cil will likely oppose such an action because of the

that the United Nations would offer humanitarian

groundbreaking precedent it would set.20

assistance inside such areas even if they were created without a UN Security Council resolution.22

In addition to the logistical hurdles to establish-

But for now, the international community has not

ing a hybrid tribunal, many stakeholders have ar-

moved forward with establishing a buffer zone,

gued that initiating transitional justice through a

and the United States has resisted the idea outright.

tribunal prior to the end of the conflict is neither desirable nor prudent. The UN Commission of In-

An early attempt to establish such a hybrid tribunal

quiry has argued that a tribunal would be costly,

on Syrian territory may also be premature due to a

beset by delays and potentially subject to external

lack of governance authority and legitimacy. If an

influence.21 Furthermore, none of Syria’s neigh-

international coalition is able to establish and pro-

bours would be appropriate hosts, as none are

tect a buffer zone, Syrians might begin to formulate

considered to be impartial due to the significant

what sort of laws they would like to implement and

national and security interests they have at stake

an Syrian interim leadership could gradually build

with their intimate involvement in the Syrian con-

legitimacy through the provision of services and

flict. Even European states that may be perceived

governance. In theory, a Syrian interim govern-

as more neutral and impartial are unlikely to be

ment and local councils could then govern within

willing to host a tribunal during the ongoing con-

Syrian territory and could also consent to the es-

flict, with the political risk that that entails. Hybrid

tablishment of a hybrid tribunal. International

tribunals also require large financial support from

security assistance would also need to produce at

donor countries; the funding mechanism for a hy-

least minimal conditions of peace and security for

brid tribunal for Syria would affect its impartial-

a hybrid tribunal to be able to operate – a difficult

ity if donors include states that have intervened in

task given the number of armed opposition groups

the conflict, even if the host state is perceived as

currently operating. This process would take time

neutral. Thus, the two main attractions of a hybrid

but has the potential to be a viable option if the

tribunal – national ownership in conjunction with

Syrian conflict continues for several years. It is

internationally-guaranteed independence – are not

unlikely, however, that any Syrian authority could

at the moment achievable. It is also questionable

presently command sufficient legitimacy from the

whether a hybrid tribunal would receive European

buffer zone to create a special criminal jurisdiction

support since many European governments pro-

over Syrian territory as a whole.23 Rather, such a

mote the ICC as the preferable international justice

buffer zone tribunal established under current

option.

conditions will more likely be perceived as fun-

‘Buffer zone’ jurisdiction for a hybrid tribunal for Syria

damentally controlled by outside powers and less than impartial. The other issue is which law the tribunal would

Rather than locate a hybrid tribunal in a neigh-

apply: Syria has no domestic criminal code that

bouring state, another option would be to base it in

is widely accepted throughout the population. If a

Syria itself under the auspices of an interim admin-

hybrid tribunal were to be established in a neigh-

istration. Since the current government in Syria no

bouring state, that state’s laws would complement

longer controls large parts of Syrian territory and

the relevant international laws, but in Syria, the

has lost legitimacy in many parts of the country,

acceptable domestic codes are in controversy. In

an argument can be made for forming a tribunal

most of rebel-held Syria, judicial structures are ad

on Syrian territory. Given the prevailing instabil-

hoc and have rejected the existing Syrian criminal

ity in much of rebel-held Syria, the only realistic

code; which law they apply depends largely on the

current prospects might be in Syria’s north or an

identity of the armed group controlling the area.

internationally-guaranteed ‘buffer zone’ adjacent

Some courts implement the shari’a-based Uni-

15 fied Arab Code, while others – including those in

President. It is uncertain, however, whether any

Salafist-held areas – apply an uncodified version of

further indictments will follow.

shari’a. Despite the attraction of targeting President Assad Under Kurdish leadership, courts in the north of

and other high-level officials through an existing in-

Syria have been implementing a constitutional

ternational tribunal, there are several reasons the

‘social contract’ in the ‘Democratic Autonomous

Special Tribunal may not be a feasible path to ac-

Regions of Afrin, Jazeera and Kobane’ since early

countability for Syria. For one, the volatile security

2014. According to its preamble, the social contract

situation in Lebanon needs to be taken into consid-

establishes ‘a political system and civil adminis-

eration. It has been argued that the delicate bal-

tration . . . that reconciles the rich mosaic of Syria

ance of power that currently keeps Lebanon away

through a transitional phase from dictatorship,

from another civil war could be jeopardized if the

civil war and destruction, to a new democratic

Special Tribunal extends its authority into Syria. In

society where civic life and social justice are pre-

addition, given the challenges the Special Tribunal

served.’ Chapter III on rights and liberties includes

has faced investigating and prosecuting Lebanese

fair trial guarantees and outlaws the death penalty,

suspects, it might be reluctant to expand the scope

and Article 88 provides that ‘Syrian criminal and

of its work to Syrian officials and/or unable to gath-

civil legislation is applicable in the Autonomous Re-

er sufficient evidence to issue indictments.

gions except where it contradicts provisions of this Charter.’ Article 14 stipulates that the Autonomous

Because the Special Tribunal’s mandate only al-

Regions ‘shall seek to implement a framework of

lows prosecution of crimes related to the Hariri

transitional justice measures’ but is silent on crimi-

assassination, even if it has jurisdiction to indict

nal sanctions, mentioning only civil redress to vic-

high-level Syrian officials, its ability to deliver jus-

tims in those regions. Although the Kurdish char-

tice to Syrian victims is nonexistent. The accused

ter is the most in line with democratic norms and

would likely be tried in absentia as they probably

international standards, it is questionable whether

could not be apprehended (like the current Leba-

a Kurdish-initiated code would gain favour in the

nese accused). Moreover, in common with other

rest of Syria. Moreover, the Kurdish-controlled au-

international and hybrid tribunals, the Special Tri-

tonomous regions in northern Syria currently have

bunal moves very slowly.27 In the short term, the

enough security issues to confront without seeking

most that Syrian suspects would suffer is restricted

to become a centre for trying senior Syrian war

travel (although even those Lebanese who have

criminals.

been indicted are known to be present in Lebanon

The Special Tribunal for Lebanon

but out of the reach of law enforcement). Given Hezbollah’s involvement in the fighting in

Another legal avenue for justice in Syria is the po-

Syria, there are some expectations that any Hezbol-

tential prosecution of senior Syrian officials under

lah leaders detained in the course of the conflict

the existing mandate of the Special Tribunal for

will be referred to a court. However, the limited

Lebanon. The Lebanese government in coopera-

mandate of the Special Tribunal would preclude it

tion with the United Nations set up the tribunal to

from pursuing accountability for violations that oc-

prosecute those responsible for the February 2005

curred in this context.

attack that killed the former Lebanese Prime Minister Rafiq Hariri and others as well as for other attacks that could potentially be connected to the assassination. The tribunal also has the unusual power to conduct trials in absentia (in the absence of the accused).24 The initial UN investigation uncovered evidence of high-level Syrian involvement in the Hariri assassination.25 During the ongoing trial of five Hezbollah members,26 the tribunal heard evidence in December 2014 which implicated senior Syrian officials, including the Syrian

16

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

Hybrid tribunals: potential impacts on justice and accountability

Turkey in the case of a buffer zone

rages and the population remains in

tribunal) would try to exert as much

dire humanitarian need, Syrians may

influence as possible over the tribu-

reject such high costs, especially if

nal, seeking to shelter individuals un-

the tribunal is managed or support-

der their protection; donor countries

ed by the political opposition, which

that support the opposition would

has already been accused of corrup-

also be perceived to exert influence.

tion and misuse of funds. In a region

The one-sided application of justice

that is already highly volatile, the tri-

A hybrid tribunal located in a neigh-

by such a tribunal would represent

bunal could even become a target of

bouring country or buffer zone would

a repudiation of the impartial vision

violence and spark tensions within

be dismissed by many, if not most,

of accountability for all perpetrators

the buffer zone or within the refugee

Syrians – and probably stymie the

and justice for all victims.

community in a neighbouring coun-

prospects for the establishment of

As for the Special Tribunal, it could

try. Without a sense of ownership, or

a more credible tribunal in the post-

only hold perpetrators responsible

trust in the competence of the tribu-

conflict period. Any hybrid tribunal

if their crimes relate to the Hariri as-

nal, Syrians’ already-low confidence

established currently would suffer

sassination. This would confuse the

in the prospect of comprehensive

from a lack of impartiality, whether

goal of accountability for violations

justice arrangements may decrease,

in fact or as a matter of Syrian per-

committed against Syrians and possi-

resulting in a greater likelihood of re-

ceptions, creating a nearly unsur-

bly spark resentment among Syrians

venge killings and retaliation.

mountable

national

who might conclude that the inter-

ownership in the justice process. If a

national community views the Hariri

By contrast, a hybrid tribunal estab-

hybrid tribunal was established with

assassination as a matter of greater

lished post-conflict, under more fa-

the consent and even support of an

international concern than the vic-

vourable conditions, could be a pow-

alternative Syrian interim administra-

timization of an entire country.

erful mechanism for pursuing overall

obstacle

for

justice and accountability in Syria.

tion or ‘government-in-exile,’ which is likely to seek justice against its oppo-

Practical issues should also be con-

Planning documents like the Chau-

nents rather than impartially against

sidered. In addition to the challenge

tauqua Blueprint can provide a viable

all perpetrators – this would lead to

of apprehending the accused (shared

framework for a Syrian tribunal, but

something like ‘victor’s justice’ (but

by all current justice options), hy-

effective implementation would first

in the absence of a clear victory).

brid tribunals are relatively costly

require the restoration of peace and

Countries in the region (especially

and slow. At a time when the conflict

a democratic transition.

Criminal prosecutions in foreign national courts

ever, courts are generally limited in their jurisdiction over crimes that occurred outside of their territory. According to the territoriality principle, a suspect is tried in the same state as that in which the crime occurred, even if the suspect or the victim is a national of another state. But while the territo-

Non-Syrian – particularly European – courts are

riality principle is the most widely accepted basis

also forums that could potentially try those sus-

under international law for criminal jurisdiction,

pected of committing crimes under international

it is by no means the only one; international law

law. These courts are established institutions that

has long accepted the concept of extraterritorial

provide a low cost alternative to creating a special

jurisdiction. Examples of principles that allow for

tribunal in Syria or a neighbouring country. How-

extraterritorial jurisdiction are the active national-

17 ity principle, the passive nationality principle, the

ISIS or Jabhat al-Nusra – or for other crimes com-

protective principle and the universality principle.

mitted while in Syria. France, the UK, and other states have already begun to use anti-terrorism leg-

The following section outlines these principles as

islation to apply penal sanctions to those travelling

well as extraterritorial jurisdictions over specific

to Syria to take part in the conflict. As more foreign

crimes created by treaty, and explains how they

nationals come home from Syria, the number of

might be applied to individuals involved in the Syr-

prosecutions under the active nationality principle

ian conflict. The combination of jurisdictional bas-

is set to increase and could act as a deterrent for

es discussed below provides extensive potential for

others thinking about joining the fight.

the prosecution in foreign national courts of those responsible for serious crimes in Syria. This will be

Terrorism is not the only area of law in which active

of particular interest in relation to countries where

nationality can be applied. Civil law countries gen-

many Syrian nationals are now resident, or who

erally allow for the prosecution of their nationals

may host dual Syrian nationals, and also to coun-

when they have committed serious crimes abroad,

tries who may have a significant number of nation-

including murder and sexual offences. Thus, the

als in Syria, including countries in Europe, North

active nationality principle provides a strong ba-

America and the Arab world. Additionally, these

sis for pursuing individuals who have committed

types of proceedings would likely not require ex-

crimes in Syria, although only in respect of those

tensive political commitments, either by the inter-

who possess non-Syrian or dual citizenship. This

national community or by the individual states in

limits the potential of the principle for securing ac-

which prosecutions take place. They would also re-

countability and deterrence in respect of the vast

quire minimal resources in comparison with some

majority of those who are fighting in Syria.

of the other justice mechanisms discussed in this report.

Active nationality principle

In some cases, the principle has been extended to include not just nationals but also aliens resident in a country, either at the time of the crime or subsequently, thereby increasing its relevance to the

According to the active nationality principle, states

situation in Syria. The UK’s International Criminal

may provide in their domestic law for jurisdiction

Court Act 2001, for example, provides for jurisdic-

over crimes committed abroad by their own na-

tion over genocide, crimes against humanity and

tionals. The principle (often referred to simply as

war crimes committed outside the UK by UK na-

the nationality principle or the active personality

tionals or residents (see further below under ‘Trea-

principle) is widely accepted in international law

ty-based extraterritorial jurisdiction’).

and civil law courts frequently apply it in their decisions. Common law states – United Kingdom,

Passive nationality principle

United States, Canada, etc. – provide for active nationality sparingly, and the extraterritorial appli-

In contrast to active nationality, the passive na-

cation of the law must be explicitly defined in the

tionality principle (or passive personality princi-

law before a court will apply it. One area in which

ple) enables states to prosecute those responsible

numerous states have codified active nationality is

for crimes committed against their nationals, re-

in the area of terrorism. In September 2014, the UN

gardless of the nationality of the accused. Passive

Security Council adopted a resolution on foreign

nationality jurisdiction is a controversial topic in

terrorist fighters, deciding that all states shall en-

international law and those states that have leg-

sure that their legal systems provide for the pros-

islated for it generally require at a minimum that

ecution, as serious criminal offences, of travel for

the conduct penalized is also recognised as a crime

terrorism or related training as well as the financ-

in the state in which the conduct occurred. How-

ing or facilitation of such activities.28

ever, the legitimacy of the principle is more widely recognized in cases where the conduct is seen to

Due to the large number of European nationals

constitute a serious crime against a state’s repre-

fighting in Syria, European courts could apply the

sentatives or nationals as such. For example, the

active nationality principle to prosecute them for

Restatement (Third) of the Foreign Relations Law of

their involvement in terrorist networks – such as

the US comments:

18

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

The principle has not been generally accepted for

official documents and counterfeiting currency

ordinary torts or crimes, but it is increasingly ac-

are common examples, but the principle has also

cepted as applied to terrorist and other organized

been invoked in cases involving espionage and the

attacks on a state’s nationals by reason of their na-

violation of immigration rules. It could be argued

tionality, or to assassination of a state’s diplomatic

that the security situation in Syria has become so

representatives or other officials.29

extreme and the refugee outflow so massive – one in four of the population in Lebanon for example

Many instances of hostage-taking and torture could

is now a Syrian refugee – that neighbouring states

similarly fall under this category, and states have

might invoke the protective principle to justify

increasingly used passive nationality to assert ju-

prosecutions, and other states are only now be-

risdiction, indicating that there is sufficient prece-

ginning to realize the potential magnitude of the

dent for it to be used in the cases of foreign nation-

security threat they face. Critics of the protective

als who have been victimized in Syria. Recently,

principle argue that national interests can be in-

the US Federal Bureau of Investigations has been

terpreted widely and such an ambiguous concept

analysing over 55,000 pictures of torture and abuse

should not be a basis for jurisdiction. Thus, the

from Syrian prisons taken by a former Syrian of-

challenge in any particular case would be to dem-

ficial, known as Caesar. If any of the victims in the

onstrate a sufficient nexus between this general-

pictures are found to be citizens of another state,

ized security threat and the alleged crime. In prac-

the alleged perpetrators – including high-level Syr-

tice, the potential for prosecutions will be greatest

ian government officials – could be prosecuted if

for those specific offences, including terrorist of-

they are caught in that state’s territory or potential-

fences, whose clear threat to national security has

ly in absentia. Similarly, there are many Western

made them the subject of multilateral treaties (see

journalists and aid workers or Syrian dual-nation-

below).

als who have been taken hostage by an extremist rebel group or unjustly detained by the Syrian gov-

Universality principle

ernment. Victims who manage to escape Syria to return to their own country could file a complaint

Unlike the aforementioned principles, universal

and pursue justice against their abusers.

jurisdiction does not require any nexus between

Therefore, the passive nationality principle pro-

the prosecuting state and the crime. Instead, the

vides an additional basis for prosecuting perpetra-

principle of universal jurisdiction holds that some

tors in Syria and broadens the scope of those who

crimes are of such gravity they concern humanity

can be targeted. Whereas the potential for applying

as a whole. This principle was originally applied

the active nationality principle primarily covers

to the crime of piracy – the pirate traditionally be-

foreign fighters in ISIS and other extremist opposi-

ing held as hostis humani generis, or the enemy of

tion groups, passive nationality jurisdiction could

humankind. Universal jurisdiction has also been

widen the net to encompass Syrian government

recognized for genocide, crimes against humanity,

officials for prosecution. However, the passive na-

and war crimes.30 Christopher Hall points out that

tionality principle is less widely accepted in inter-

‘universal jurisdiction has been an accepted part of

national law. Moreover, passive nationality still re-

international law since the Middle Ages’ and that

quires that the alleged abuse have a nexus with the

approximately three-fifths of all countries have in-

prosecuting state, which again limits the potential

corporated the principle in their national legisla-

for the principle to be used to pursue overall justice

tion.31 The high water mark in the use of the uni-

and deterrence in Syria.

Protective principle

versality principle is often taken to be the Pinochet case, in which five European states32 claimed jurisdiction over the former Chilean head of state for crimes committed in Chile (although some of the

Unlike active or passive nationality, the protective

judicial instances appeared to found their judge-

principle does not depend for its application on

ments in treaty law rather than the universality

the nationality of either the victim or the accused.

principle as such).33

The protective principle covers cases in which the

According to the UN Commission of Inquiry and

state acts against those abroad who endanger its

other human rights monitors, the Assad govern-

security or other national interests. Forgery of

ment has committed crimes against humanity and

19 war crimes, including systematic torture, sexual

Geneva Conventions (war crimes), torture, and

violence, extrajudicial executions and the indis-

a growing number of terrorism-related offences.

criminate bombing of civilian areas. Such crimes

The obligation aut dedere aut judicare (extradite or

can be seen as concerning humanity as a whole.

punish) that applies to grave breaches of the Ge-

Furthermore, some rebel groups – most notori-

neva Conventions35 is also imposed by conventions

ously, ISIS – have committed atrocities in Syria that

focusing on the suppression of specific crimes,

have shocked the world because of their level of

such as torture, hostage-taking and enforced disap-

depravity. These crimes could be prosecuted in a

pearance. Syria is not a state party to the Interna-

foreign court under the principle of universal juris-

tional Convention against the Taking of Hostages,

diction even if neither the victim nor the perpetra-

but acceded to the UN Convention against Torture

tor is connected to the forum state. In fact, Sweden

in 2004. It is notable that such conventions cover

recently applied universal jurisdiction to the Syria

even individual acts of torture or hostage-taking

conflict, convicting a Syrian rebel fighter of war

that may not meet the gravity threshold for the ICC.

crimes.34 In many cases, treaties conferring extraterritorial It is precisely the potentially broad scope of uni-

jurisdiction can be seen to embody other jurisdic-

versal jurisdiction and the lack of a required nexus

tional principles discussed above. The growing

with the forum state that has perhaps limited its

number of treaties aiming at the suppression of

application. A number of countries, including the

terrorist conduct could thus be seen as a manifes-

United States, have proved hostile towards univer-

tation of the protective principle, while universal

sal jurisdiction on the grounds that it encroaches

ratification of the Geneva Conventions has perhaps

upon state sovereignty. It has been argued that uni-

rendered moot whether the extraterritorial juris-

versal jurisdiction could result in conduct in one

diction over war crimes in international armed

state being prosecuted even if it had absolutely no

conflict technically derives from the universality

connection with the forum state. Under this rubric,

principle or from the treaties themselves. In other

a state would find it difficult to predict where and

cases, as noted above, domestic legislation imple-

for what reasons its officials may be targeted in a

menting treaty obligations may limit the exercise of

foreign court. In Belgium, for example, prosecu-

jurisdiction to crimes committed by the state’s na-

tors increasingly used a domestic law on universal

tionals or residents (active nationality principle) or

jurisdiction to assert their authority over crimes

against its nationals (passive nationality principle).

committed by leaders in several countries, but un-

Both the seriousness of the crimes concerned and

der international pressure amending legislation

the scope of extraterritoriality often lead treaty-

was passed to limit the scope of application.

based extraterritorial jurisdiction to be compared – or confused – with universal jurisdiction. However,

Despite resistance in applying universal jurisdic-

rather than applying universally to acts that are ac-

tion, foreign courts may feel compelled to use it in

cepted as international crimes, the jurisdiction ex-

the case of Syria where the atrocities are so signifi-

tends only over states party to the treaty and over

cant in magnitude and no current forum exists to

the crime(s) specified in the treaty. But the fact that

address them. It could be argued in a foreign court

a state has explicitly consented to the jurisdiction

that a claim of sovereignty cannot defeat universal

through ratifying the treaty means that a foreign

jurisdiction where a government has lost all legiti-

court is less likely to entertain objections on sover-

macy and is manifestly unable or unwilling to pro-

eignty grounds.

tect its own people.

Treaty-based extraterritorial jurisdiction

Limitations on extraterritorial jurisdiction

Since World War II, particular crimes of interna-

While international law allows for different forms

tional concern have become the subject of multilat-

of extraterritorial jurisdiction, it also places sig-

eral treaties aiming at their suppression, including

nificant limits on its exercise, including a range

through the provision of extraterritorial criminal

of sovereign and diplomatic immunities. Heads

jurisdiction. This includes grave breaches of the

of state and foreign ministers, at a minimum,

20

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

enjoy absolute sovereign immunity while in of-

ity of targeting perpetrators from more than one

fice, although once they leave office, immunity

side of the conflict, and the need to avoid damaging

remains only for acts that were performed in

future prospects for transitional justice. A particu-

an official capacity.36 Another limitation occurs

lar danger arises from the ne bis in idem or double

when states pass legislation to restrict the exer-

jeopardy rule against defendants being repeatedly

cise of universal jurisdiction and other forms

tried for the same offence; this is a general princi-

of extraterritorial jurisdiction on grounds of

ple of criminal law and enshrined in the statutes

public policy and international comity, seek-

of most international criminal tribunals (including

ing to avoid becoming a forum for prosecut-

the ICC).38 A seriously mishandled investigation or

ing crimes where no nexus to the state exists.

trial may enable a defendant to avoid future at-

37

tempts to bring him or her to justice by claiming Even if extraterritorial jurisdiction is recognized

double jeopardy.

under international law, therefore, whether a particular crime can be prosecuted will likely depend

Other challenges associated with extraterritorial

on the relevant national implementing legislation,

jurisdiction include the difficulty of complicat-

the applicable domestic criminal law, and the sta-

ed extradition arrangements (for example, with

tus of any immunities enjoyed by the accused. A

countries neighbouring Syria) and apprehending

strategic approach to case selection would take

accused persons. Additionally, if multiple foreign

into account the factors noted above, the desirabil-

jurisdictions prosecute persons for violating inter-

Criminal prosecutions in foreign national courts: potential impacts on justice and accountability

tice if prosecutions are only pursued

While a series of extraterritorial cases

against opposition figures – even if

are feasible in the short- to medium-

they are affiliated with groups such

term, they should not be regarded as

as ISIS. Solely focusing on counter-

providing a solution to the challenge

terrorism cases would risk being

of transitional justice in Syria. Pros-

viewed by Syrians as a message that

ecutions in foreign national courts

the international community is only

would necessarily involve a piece-

concerned with national security and

meal approach, and expectations

will turn a blind eye to atrocities com-

should be modest. For instance, such

mitted by all parties during the con-

cases will likely be limited to lower-

flict to date.

level perpetrators, as the most senior Syrian state officials are inaccessible

Criminal prosecutions in foreign national courts could be a significant

Second, such prosecutions could pre-

and may still benefit from immunity

step towards justice for Syria. First,

pare the ground for, or be presented

before foreign courts. These limi-

such cases could send a message to

as first steps towards, prosecutions

tations should be openly acknowl-

Syrians that the international com-

in Syria of the highest-level perpetra-

edged to avoid sending the wrong

munity is still committed to accounta-

tors, in the post-conflict future. The

message to Syrians. Nonetheless,

bility, so long as foreign jurisdictions

impact would be maximized if several

such cases hold the potential for de-

undertake

without

countries conducted domestic legal

livering a measure of accountability

bias and prosecute crimes under in-

proceedings in parallel, particularly

in individual cases, while helping to

ternational law as broadly as possi-

if national prosecuting authorities

advance a wider process of justice for

ble. However, there is a potential that

were able to coordinate investiga-

Syria overall.

these cases could have a negative

tions as part of a limited but targeted

impact on Syrians’ perceptions of jus-

strategy for pursuing overall justice.

investigations

21 national laws, each will apply and interpret the

case involving British nationals who had been im-

laws differently, potentially leading to inconsistent

prisoned in Saudi Arabia, the ECtHR upheld a state’s

application of principles for similar crimes.

ability to extend immunity from civil proceedings not only to other states themselves but also to state officials, even in a case alleging torture.47 However,

Civil actions in foreign national courts

the Court created a distinction between immunity for civil and criminal cases, noting that state practise on the question of state immunity and claims of torture was ‘in a state of flux’ and is a matter which Contracting States should keep ‘under review.’48

Civil actions provide an alternative further poten-

The uncertainty is perhaps particularly apposite

tial legal avenue for victims to obtain redress for

in those civil law countries which have a partie

the abuses they have suffered. Rather than facing

civile system. In these countries, a victim can ap-

a prison sentence or other punishment, the defend-

ply as a partie civile to an investigating judge (juge

ant in a successful civil action is ordered to pay

d’instruction) to open a criminal investigation and

compensation to the plaintiff. Civil actions do not

attach a claim for damages to a criminal prosecu-

prevent a separate criminal prosecution and may

tion. In such situations, even if states or state of-

make an attractive short-term alternative until a

ficials enjoy immunity from civil process, victims

longer-term criminal process is established.

may be able to pursue redress by attaching their claims to criminal cases.

Since the 1980s, activists have pioneered the use of civil actions against those responsible for com-

As for the United States, the US Supreme Court has

mitting human rights abuses abroad. Perhaps the

similarly limited the ability of victims to pursue

best-known cases have been brought in the United

civil litigation in certain situations. In Mohamad v

States under the Alien Tort Statute

and the Tor-

Palestinian Authority, the Court held that the Tor-

ture Victim Protection Act (TVPA).40 For example,

ture Victim Protection Act does not permit actions

the family of a young man tortured to death in

against corporations or political organizations

Paraguay successfully sued the senior policy officer

such as the Palestine Liberation Organization, but

responsible after he moved to New York, obtain-

only against individuals. Justice Sotomayor wrote

ing a judgement for over $10 million.41 A number

for the unanimous court that ‘the text of the TVPA

of such cases have relied on so-called ‘tag jurisdic-

convinces us that Congress did not extend liability

tion,’ meaning the defendant was served with pro-

to organizations, sovereign or not.’ Then in Kiobel

cess during a brief presence on US territory.

v. Royal Dutch Petroleum Co., a majority Supreme

39

42

Court, working on the presumption that federal The ability to pursue civil actions for conduct com-

laws do not apply extraterritorially, ruled that the

mitted abroad, however, has been significantly

Alien Tort Statute does not allow civil actions for

limited by several recent judgements which have

conduct committed on the territory of a foreign

had the effect of buttressing the rule that gives

sovereign.49 The Court’s reasoning in Kiobel leaves

states immunity from process in foreign jurisdic-

open the question of whether the presumption

tions. In the Jurisdictional Immunities (Germany v.

against extraterritoriality would apply in the case

Italy) case, the International Court of Justice stated

of failed states where there is no effective sover-

that state immunity was applicable even in a case

eign authority (arguably the case in Syria). But

of an alleged violation of a peremptory norm (jus

more immediately, the court recognized that civil

cogens)43 of international law.44 The ICJ made clear

actions against foreigners for conduct committed

that that it was addressing ‘only the immunity of

abroad were still possible under US statutes that

the State itself from the jurisdiction of the courts of

expressly permitted such litigation, the primary

other States; the question of whether and to what

example being the TVPA which explicitly provides

extent immunity might apply in criminal proceed-

for the liability in civil actions of individuals who,

ings against an official of the State is not in issue in

‘under actual or apparent authority, or color of law,

the present case’.45 However, the European Court

of any foreign nation,’ subject an individual to tor-

of Human Rights (ECtHR) later extended the ICJ’s

ture or extrajudicial killing.50

logic.46 In Jones and Others v. the United Kingdom, a

22

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

Overall, civil actions in foreign courts are likely

with civil claims for redress, either under the par-

to face greater obstacles under rules of immunity

tie civile system, or in the US under the Torture

than criminal cases, and may also be less appropri-

Victim Protection Act. Another obstacle would be

ate than prosecutions given the scale of criminality

collecting on the judgments, raising the question of

involved in the Syrian conflict. However, criminal

whether use of frozen assets would be an appropri-

cases in foreign jurisdictions can be supplemented

ate means for doing so.

Civil actions in foreign national courts: potential impacts on justice and accountability

such cases, even if successful, would

so Assad government officials may

be perceived as isolated incidents

use ill-gotten gains to settle claims.

and have little impact on Syrians’ perceptions of justice overall. However,

These risks should not prevent civil

large, symbolic judgements could

actions, however, in cases where

contribute to a wider recognition for

perpetrators reside in the foreign

harms suffered, especially if com-

jurisdiction. If persons who could be

bined with equitable remedies.

liable are not brought to trial after long periods of residence in foreign

These types of actions also carry par-

jurisdictions, this could contribute to

As with criminal prosecutions in for-

ticular risks. Even cases in which vic-

a perception among Syrians that they

eign jurisdictions, civil actions could

tims obtained full satisfaction could

are being protected by the host coun-

have limited but positive impacts on

be perceived as unjust if defendants

try.51 Concerted efforts to increase

justice and accountability for Syria,

with financial resources – more likely

the capacity of Syrians abroad who

so long as they are complementary

to be high-level officials – are able to

may be eligible to bring civil claims

to, or prepare the ground for, other

‘pay off’ claims of victims while avoid-

may help mitigate these risks.

mechanisms. Unless they are under-

ing criminal responsibility. This is a

taken as part of a holistic justice strat-

particularly problematic issue be-

egy designed for long-term effects,

cause corruption is endemic in Syria,

2

Practical and ethical challenges Mechanisms for securing justice internationally, such as those outlined above, may be available as a matter of law, but practical and ethical constraints might make them undesirable options in the Syrian context. These constraints require careful evaluation.

The UN Commission of Inquiry on Syria concluded in 2013

punishment if convicted. However, many of the perpetrators

that ‘given the protracted and increasingly sectarian nature

of violations remain in Syria, which is largely inaccessible

of the conflict, it seems highly improbable that effective and

to international actors. Even neutral humanitarian organi-

independent prosecutions that meet essential international

zations face difficulties in reaching civilians in need of food,

standards could be carried out in Syria anytime in the near

water, and medical supplies, so it is unlikely that investiga-

future.’52 The situation has since deteriorated.

tors seeking to bring a regime or opposition figure to justice would be able to do so.

Although many Syrians and members of the international community are eager to bring the perpetrators of human

Therefore, many of the options for prosecutions mentioned

rights abuses to justice, such steps should not be taken if

above rely on the perpetrator of atrocities leaving Syria

they harm the potential for a holistic and legitimate transi-

on travel, for resettlement, or to return to their domicile

tional justice process once the conflict ends. Furthermore,

abroad. For those perpetrators who have no intention of

certain justice mechanisms may seem feasible in theory, but

leaving Syria, the only current option for bringing them to

should not be pursued if they cannot be properly and effec-

justice may be to try them in absentia, meaning without their

tively implemented. This section outlines the most pertinent

presence at trial.

challenges to pursuing justice for victims during the ongoing conflict and aims to explore the potential consequences of

Despite their use at the Special Tribunal for Lebanon, in

implementing justice mechanisms too hastily.

absentia trials are controversial and are usually altogether prohibited or their use strictly limited. According to the In-

In absentia trials

ternational Covenant on Civil and Political Rights, ‘everyone shall be entitled . . . to be tried in his presence, and to defend himself in person through legal assistance of his own choos-

Prosecutions and civil actions generally require that the de-

ing.’53 This right can be waived, but the issue of what consti-

fendant be present at trial to put forth a defence and face

tutes a waiver differs from country to country. The United

24

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

States and other common law countries only rec-

This is not to say that prosecutions are impossible.

ognize a waiver if the accused flees or becomes

Many of the victims and witnesses to atrocities

too disruptive to attend after the trial has begun.

have fled Syria and are currently living in neigh-

Trials can never begin without the presence of the

bouring countries, in Europe or in North America.

accused.

The UN Commission of Inquiry has stated that it

54

holds a growing store of evidence related to named Civil law countries are much more tolerant of in

individuals which it will make available to any

absentia trials and some countries consider the ab-

credible justice initiative. The ‘Caesar’ dossier of

sence of the accused at his or her trial date to be a

55,000 photographs, showing the bodies of some

waiver of the right to be present at trial. According

11,000 Syrian detainees, was taken by a former mil-

to the ECtHR, the accused must 1) receive proper

itary photographer who defected in August 2013.

notification; 2) explicitly waive the right to a trial;

Three former leading international prosecutors

3) be given the opportunity to appoint representa-

have found that the photographs provide evidence

tion; and 4) be allowed a retrial if he or she appears

of systematic torture and killing by agents of the

in the prosecuting jurisdiction following the con-

Syrian government ‘capable of being believed by a

viction. Germany does not allow in absentia trials

tribunal of fact in a court of law.’55 The Syrian Jus-

for serious crimes and France allows them in theo-

tice and Accountability Centre (SJAC) is also build-

ry but not in practice. Italy is the most permissive

ing a comprehensive data store from a wide range

jurisdiction for in absentia trials and allows them

of available sources, documenting violations by all

frequently.

sides in the conflict.

However, the unresolved debate on the issue

Thus, some evidence is immediately accessible

means that a perpetrator can object to an in absen-

to international actors, but the question remains

tia trial by citing the ICCPR or can demand another

whether such collections of photographs, videos and

trial once he or she has been apprehended, mean-

witness testimonies will be enough to garner a con-

ing that an in absentia conviction, even if upheld on

viction without further corroboration. Prosecutors

appeal, is not the final say of the court and could be

move forward with trials only when the evidence

overturned during retrial. Despite the legal hurdles

has a sufficient likelihood of securing a conviction.

and due process implications of trying a suspect in absentia, proponents of the concept argue that these types of trials serve justice better by preserving the quality of evidence, which has a tendency

Witness protection

to lose value over time. Also, the trial could dem-

The Rome Statue and the codes of many foreign

onstrate the seriousness of the international com-

jurisdictions require that witnesses who come for-

munity’s resolve to hold perpetrators accountable,

ward to testify in a criminal trial be protected, but a

wherever their locations, and could serve some

lack of access to Syrian territory also makes victim

deterrent purpose. Without in absentia authority,

and witness protection much more difficult. Wit-

a non-Syrian court could only pursue perpetrators

ness protection cannot be taken lightly – the mur-

who can be physically apprehended, thus greatly

der or kidnapping of witnesses is a potential risk

limiting the application of justice mechanisms dur-

and threats or other forms of witness intimidation

ing the ongoing conflict.

are common. The ICC, for example, had recurrent

Investigative access

trial, where it was compounded by problems of

Apprehending suspects is not the only challenge

with leaks that put witnesses’ lives in jeopardy. The

to carrying out prosecutions during war. Inter-

problem is particularly acute for victims and wit-

viewing victims and witnesses still living in Syria

nesses still living in areas under the control of hos-

is also problematic. Moreover, a prosecutor would

tile parties.

issues with witness intimidation in the Lubanga territorial access, as well as in the Kenyan cases. Even in closed sessions, the ICC has had problems

need access to documentary and physical evidence, which may also be beyond the reach of expert in-

But the duty to witnesses encompasses more than

vestigators and forensic analysts.

protecting them from threats or retribution. Sur-

25 vivors of torture and sexual violence who provide

official justice system and courts, but also in rebel-

testimony or other evidence at trial may need ad-

held areas, where due process has been replaced

ditional support services, including medical or

with extrajudicial executions and revenge killings.

psychosocial support to address the physical and

Thus, the need for capacity building is great. The

psychological trauma of abuse. Protection and eco-

ICC and hybrid tribunals have some potential for

nomic support can also be required by rape survi-

capacity building, but foreign national judicial sys-

vors who, after speaking out, may be abandoned

tems do not include a means of training or provid-

or threatened by their families because of the per-

ing technical assistance during the progress of a

ceived shame. The prosecuting jurisdiction should

trial. The lack of capacity building may be another

be cognizant of service needs and have the capacity

lost opportunity for helping build a Syrian-led pro-

to address them even if the witness is out of reach

cess after the conflict ends.

in Syria. Without a plan for dealing with witness protection in a particular case, tribunals might be

Syrians seem to be in agreement that justice and

breaching an ethical duty by moving forward with

accountability should be a priority. Interviews

prosecutions.

with a diverse group of Syrians commissioned by SJAC revealed polarized views on many issues but

Ownership and capacity building

strong support for ‘the notion that those who committed abuses on both sides should be prosecuted.’ Furthermore: Pro- and anti-regime interviewees differed on

Syrian ownership over current justice processes

whether the trials should occur in the existing

could help feed into the foundations for future

courts or in new ones, but most in both camps

justice and accountability mechanisms in a post-

favoured Syrian courts and rejected international

conflict Syria. The ICC’s complementarity principle,

participation.57

by which international prosecutions can occur in tandem with domestic prosecutions, has the po-

Given that the conflict has already seen extensive

tential for promoting a feeling of national owner-

foreign involvement by states and other actors

ship among Syrians, as does a hybrid tribunal that

both within the region and across the world, the

employs both Syrian and international judges and

desire for a Syrian-led approach is perhaps hardly

lawyers. However, the ICC and a hybrid tribunal

surprising. The conundrum posed by the current

are perhaps the two least feasible options for Syria

situation is that substantial Syrian ownership is at

at the moment. Prosecutions in foreign national

once impossible but essential, while international

courts are currently more feasible but offer very

involvement is both necessary but unlikely to be

limited means for including Syrian voices or input.

embraced by Syrians. This challenge is not going to

Such prosecutions, even if initiated on the suit of

be easily overcome, but should at least be under-

individual victims, are based in the law of the for-

stood by international and foreign actors seeking

eign state and managed by that state’s judges and

to pursue justice during the ongoing conflict.

lawyers. However, without a feeling of ownership among Syrians, prosecutions in foreign national courts may be ignored or at worst completely rejected by the majority of the local population. As

Impartiality

such, these prosecutions may not have the desired

According to multiple sources of documentation,

positive impact on future transitional justice pro-

the Assad regime is responsible for the great ma-

cesses in Syria.

jority of atrocities committed in the conflict to date. Many sources also blame the Syrian government

Another problem with foreign prosecutions is the

for escalating what were peaceful protests into a

lost potential for capacity building among Syrian

violent conflict, exacerbating the humanitarian

lawyers, judges, and institutions. The prevailing

crisis, and enabling the rise of extremism. As a re-

impunity for serious crimes in Syria is first and

sult, international actors including UN agencies,

foremost a failure of its national justice system.56

Western and Arab states, and many NGOs have ex-

This failure is not only evident in the government’s

pressed heavy criticism of Assad and his adminis-

26

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

tration. ISIS receives even stronger scorn. While the

than one jurisdiction moves forward with a trial,

condemnation may be deserved, it makes the inter-

the issue of double jeopardy arises. Although dou-

national community appear partisan and makes it

ble jeopardy is prohibited in the constitutions and

difficult for it to be seen as an impartial broker of

laws of many states, it is not clearly prohibited on

justice in what is already a highly politicized and

the transnational level, meaning that a suspect ac-

divisive conflict. Syrians are nowhere near a con-

cused of committing crimes in Syria could poten-

sensus on their opinion of the Assad regime or the

tially be charged in more than one state and could

multitude of other armed groups (with perhaps the

face a period of sentencing in each.59 An argument

exception of ISIS, for which most show a uniform

can be made that multiple prosecutions for the

disdain). It is therefore possible that a significant

same crime are an abuse of the suspect’s rights

proportion of the Syrian population may not view

and creates an ethical dilemma for those eager to

any convictions derived from a Western or Arab

seek justice against war criminals. The principal

court as legitimate.

protection against prosecutions in multiple states is a state’s refusal to extradite the suspect on the

At the same time, the logistical and legal hurdles

grounds that he or she has already been tried.

mentioned above mean that foreign jurisdictions

Since each state has its own rules on both double

are far more likely to target their own nationals

jeopardy and extradition, there is quite a bit of un-

and residents for prosecution, with a focus on na-

certainty for accused persons in the field of extra-

tional security concerns and countering terrorism.

territorial prosecutions.

Many of the foreign or dual nationals entering Syria are fighting for rebel or extremist groups. Thus,

Double jeopardy is not limited to extraterritorial

foreign national courts are most likely to exercise

trials. If Syria initiates prosecutions as part of its

jurisdiction over a certain type of perpetrator – op-

own transitional justice process in the post-conflict

position fighters, particularly those with links to

period, Syrians may demand the ability to pros-

terrorism. The resulting convictions could support

ecute individuals who have already been tried

the already prevalent view that the West no longer

abroad – particularly if the foreign prosecution

cares about pursuing justice against Assad or his

failed on due process grounds or was seen as too

allies and could negatively affect the perceptions

detached from the local context and did nothing to

of Syrians when it comes to the agenda of the in-

contribute to a national healing process. A decision

ternational community and what accountability

on whether to extradite the accused back to Syria

means for their country. Sweden’s conviction of a

would need to balance the legitimate right of Syr-

former Free Syrian Army rebel for mistreating a

ians to seek justice for crimes committed on their

prisoner is an example of the potential backlash

territory and the accused’s right to fair treatment

prompted by these types of prosecutions. Sweden

under the law.

used extraterritorial jurisdiction over war crimes to try Mouhannad Droubi after a Facebook video was discovered that depicted him beating a man who was tied up and defenceless.58 Since this was the first time someone had been convicted of a war crime in the Syrian conflict, many Syrians decried the conviction and claimed that it ignored the big-

Failure could cause disillusionment with justice

gest perpetrator of atrocities, the Assad regime. If European countries continue to prosecute former

Syrians are eager for retribution both for redress

rebels, the outcry may increase.

and for the current stalemate to end. Thus, they will carefully scrutinize and also attach hope to

Double jeopardy

any action taken by international or foreign tribu-

The variety of possible jurisdictions available for

fail to secure guilty verdicts, or if the sentences are

extraterritorial prosecutions exposes the accused

perceived as too lenient, Syrians may lose faith in

person to the risk that two or more states hold con-

international standards of due process and instead

current jurisdiction over his/her crimes. If more

turn to vigilante justice to achieve their desire for

nals with regards to crimes committed during the conflict. If these actions fail to garner prosecutions,

27 retribution. Moreover, many international and

tional judicial action. Another failed attempt by the

Syrian actors are calling for immediate prosecu-

international community to exert a positive influ-

tions because they believe guilty verdicts could act

ence in Syria could result in increased hopeless-

as a deterrent against further atrocities. However,

ness among Syrians. Disillusionment with formal

there are few indications that the Assad regime or

systems of justice will not bode well for a future

extremist rebel groups will be deterred by interna-

transitional justice process in Syria.

3

Conclusions Reviewing pre-transition accountability options for Syria reveals a rich variety of potential legal avenues, but complex practical obstacles and ethical challenges to achieving justice. This briefing has sought to identify which international justice mechanisms would actually be feasible to apply in the current Syrian context, while bearing in mind their limitations. Most importantly, the likely and possible impacts on the current situation in Syria and future prospects for transitional justice should be carefully weighed before any mechanisms are employed. The following recommendations are therefore advanced to guide implementation.

Postponing justice is preferable to a flawed process

international law,60 such that a prolonged wait for the implementation of justice could itself be a serious violation of their human rights. Current avenues for accountability, however, should be followed with adequate regard for their impact on the pros-

As the Syrian conflict continues without an end in sight, the

pects for establishing a comprehensive transitional justice

argument for immediately pursuing some form of account-

process, and should abide by the principle of ‘do no harm.’

ability, beyond the simple documentation of violations, has

The scale of the practical and ethical challenges is such that

become pressing. Limiting the culture of impunity that cur-

it would clearly be easier to wait for a transition of power

rently prevails in Syria and demonstrating a commitment

before pursuing justice for past atrocities, when the political

to justice for the Syrian people are two strong arguments

climate in Syria may be more conducive to a wider range

against delaying accountability. It is also possible that nei-

of options and to implementing a more comprehensive ap-

ther the transition itself nor future transitional justice mech-

proach to accountability. Recent history also includes a

anisms will ever become a reality. If the Syrian regime falls,

number of instances where leaders accused of international

the new leaders may not necessarily favour democratization

crimes have remained in power for years, placing a question

or a transitional justice process that conforms to interna-

over the effectiveness of international justice. After over a

tional human rights standards. Moreover, victims of human

decade of atrocities in Darfur, for example, President Omar

rights violations have the right to an effective remedy under

al-Bashir of Sudan remains in power out of the reach of the

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

ICC, despite his indictment. While efforts to secure

arrangements after a change of government in Syr-

some form of accountability for gross abuses com-

ia. While prosecutions in foreign national courts

mitted in Syria should not be endlessly postponed,

do not address the issue of ownership, they may

postponement is therefore preferable to an inher-

chip away at impunity in Syria, provide recourse

ently flawed process that fails to meet the needs of

to some victims, and even have a positive effect in

victims and creates disillusionment with formal ju-

maintaining pressure internationally for broader

dicial processes, damaging the long-term prospects

accountability measures. At a time when geo-polit-

for transitional justice in Syria.

ical alliances may be shifting in the Syrian conflict, such an approach may also help forestall the po-

Prosecutions in foreign courts are the most feasible options currently This report has put forth several options for pursu-

litical rehabilitation of, or award of amnesties to, those responsible for crimes against humanity.

Current accountability processes should try to connect with Syrians

ing justice against the perpetrators of crimes under international law committed in Syria, and has

Any justice mechanism that is implemented out-

evaluated the feasibility and impacts of each. The

side of Syria will be, to some extent, disconnected

analysis demonstrates that international mecha-

from the realities on the ground. However, this dis-

nisms, including the ICC or a hybrid tribunal, will

connect can be mitigated if the court or prosecut-

be difficult to establish in the current political cli-

ing authority in question strives clearly and openly

mate. The premature creation of a hybrid tribunal

to explain its processes and decisions to ensure

is also likely to be highly politicized and denounced

that Syrians can understand why certain actions

as illegitimate by a significant portion of the Syrian

are being taken, and how they might lead to a more

population. Thus, strategic criminal prosecutions

comprehensive justice process post-conflict. These

and civil litigation in foreign national courts will

interactions can happen through satellite radio,

likely have the greatest short-term impact out of

social media, and leafleting in refugee camps, and

the range of options discussed.

judicial decisions could be translated or summarized in Arabic and published online. In particular,

The options should be evaluated strategically, bear-

current accountability actions should accord with

ing in mind, for example, the need to protect the

the interests of the Syrian people who have experi-

rights of victims and witnesses, the value of main-

enced violations of their rights and should be driv-

taining Syrian ‘ownership’ of justice mechanisms,

en by the legitimate claims of Syrian victims. By

and the importance of not damaging future pros-

doing so, the justice mechanism, whether a foreign

pects for more comprehensive transitional justice

court or international tribunal, can give voice to

29

30

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

Syrian concerns and help forestall misconceptions

individual cases may necessarily target an indi-

about the international community’s motivations.

vidual perpetrator, accountability mechanisms as a whole should be non-partisan and consider the

Impartiality of current processes will affect long-term prospects for justice

potential culpability of all actors in the conflict, including members of the Syrian government. If national prosecutors in foreign jurisdictions solely target designated terrorist groups or only prosecute individuals from the opposition, the Assad supporters will feel bolstered while opposition supporters, including moderates, may grow resentful of foreign judicial intervention and reject inter-

Accountability mechanisms should, as a priority,

national legal standards if a transition eventually

focus on delivering justice for the most serious

transpires. It is, therefore, important for current

crimes under international law, including torture,

justice mechanisms to take a holistic view of ac-

war crimes and crimes against humanity, rather

countability in Syria even as they target individual

than targeting mere participation in the conflict or

perpetrators.

focusing solely on terrorist-related activity. While

31 Endnotes 1

Eg UN Commission of Inquiry, 2013, Annex IV, pp 124-128.

20

The establishment of tribunals for Gaza and for North Korea have also recently been mooted.

2

There is already a large and growing literature on transitional justice and its place in peacebuilding; see eg. Stan and Nedelsky. For the role of international criminal justice in transitional justice, see special issue 7 (3) (2013) of the International Journal of Transitional Justice.

21

UN Commission of Inquiry, 2013, p125.

22

‘UN would offer humanitarian support in Syria safe zones – Amos’, Reuters, 20 October 2014.

23

To date, the external political opposition, such as the Syrian Opposition Coalition and its interim government, have been unable to establish governance infrastructure, control territory, or claim that their composition or selection processes are representative of Syrians.

24

Statute of the Special Tribunal for Lebanon, UN Security Council, S/RES/1757 (2007).

25

UN International Independent Investigation Commission (UNIIIC).

26

Ayyash et al., Special Tribunal for Lebanon, STL-11-01.

27

The Special Tribunal released indictments six years after the Hariri assassination occurred and the first trial started after a further three years.

28

S/RES/2178 (2014), 24 September 2014.

29

Restatement (Third), supra n17, §402, Comment g, Reporter’s note 3.

30

See Princeton Principles.

31

Lattimer and Sands, p47. For details of state practise see Amnesty International, Universal Jurisdiction; see also International Committee of the Red Cross, Practice Relating to Rule 157, Jurisdiction over War Crimes, and Practice relating to Rule 159, Prosecution of War Crimes, in Customary International Humanitarian Law Database, accessible at www.icrc.org/customary-ihl/eng/docs/home

32

Spain, the UK, Belgium, France and Switzerland. For the judgements in Spain and the UK, see The Pinochet Papers.

33

This was certainly the approach that the majority of judges appeared to take in the final Pinochet case before the UK House of Lords; see R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (Pinochet No 3) (HL(E)) [2001] 1 AC 147.

34

Neither the victim nor perpetrator were Swedish nationals. See ‘Sweden sentences Syrian rebel to five years for war crime’, BBC, 26 February 2015. Retrieved from http://www.bbc.com/news/ world-middle-east-31639378

35

Eg. Geneva Convention IV, Art. 146.

36

International Court of Justice, Arrest Warrant of 11 April 2000 (DRC v Belgium), Judgement,14 February 2002, §54-61. However, courts have held that official acts do not include international crimes; see Pinochet No. 3, supra n33.

37

Thus the UK now requires approval for such cases from the Director of Public Prosecutions, and Belgium requires state prosecutor approval in all cases other than those where the accused is a Belgium national or long-term resident.

38

See Rome Statute, Art. 20; see also Bockel.

39

28 U.S.C. § 1350; ATS.

40

Pub L 102-256, 106 Stat 73; TVPA.

3

An Iraqi-Syrian rebel group, formerly known as the Islamic State in Iraq, which is widely known in Syria by its Arabic acronym Da-ash. The group changed its name in June 2014 to the Islamic State (IS).

4

UN Commission of Inquiry, 2014.

5

For example, under Article 30 of the UN Convention against Torture, to which Syria is a party, other states parties can refer a dispute over the interpretation or application of the Convention to the ICJ, following exhaustion of negotiation or arbitration; see Lichtenstein Institute of Self-Determination.

6

7

Rome Statute of the International Criminal Court, 2187 UNTS 90, Art. 13. Most of the ICC’s initial case-load derived from ‘self-referrals’ but under the Rome Statute states parties are not limited only to referring their own situation to the court. Peter R Neumann, ‘Foreign fighter total in Iraq/Syria now exceeds 20,000; surpasses Afghanistan conflict in the 1980s’, International Center for the Study of Radicalization and Political Violence, 26 January 2015. Retrieved from http://icsr.info/2015/01/ foreign-fighter-total-syriairaq-now-exceeds-20000surpasses-afghanistan-conflict-1980s/ ; see also UN Security Council, Sixteenth report of the Analytical Support and Sanctions Monitoring Team, §14.

8

Statement of Foreign Secretary William Hague to the UK House of Commons, 16 June 2014.

9

Jordan, Tunisia, Djibouti, the Comoros, and most recently Palestine are States Parties to the ICC.

10

‘Ministry: around 2,400 Tunisians fighting in Syria,’ AFP, 23 June 2014

11

See Neumann, supra n7.

12

UN-administered hybrid courts were also established in Kosovo and East Timor.

13

See Chautauqua Blueprint.

14

See Aryeh Neier, ‘An Arab War-Crimes Court for Syria’, New York Times, 4 April 2012.

15

David Scheffer, ‘Let justice be served in Syria and Iraq’, LA Times, 5 July 2014.

16

See Van Schaak.

17

Restatement (Third) of the Foreign Relations Law of the United States, American Law Institute, 1987, § 402-3

18

See International Court of Justice, Effect of Awards of Compensation Made by the UN Administrative Tribunal, Advisory Opinion, 13 July 1954.

19

The ‘Uniting for Peace’ resolution was steered by the United States at the start of the Korean war and has since been used, for example, to authorize UN intervention in the Suez crisis in 1956, and to authorize sanctions against South Africa in 1981 over its occupation of Namibia.

32

A Step towards Justice: Current accountability options for crimes under international law committed in Syria

41

Filártiga v. Peña-Irala, 639 F 2d 876 (2nd Circuit 1980).

42

Eg. Kadić v. Karadzić, 70 F 3d 232, § 247.

43

A peremptory norm of international law is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted. Examples include prohibitions on the use of aggressive force, genocide, crimes against humanity, and slavery or other human trafficking.

51

This is the case, for example, in relation to Rifaat al-Assad, the uncle of Bashar al-Assad who is widely recognized as responsible for atrocities in Hama during the 1980s. Rifaat resides in Spain and owns extensive properties in France, but has so far avoided litigation.

52

UN Commission of Inquiry, 2013, p124.

53

ICCPR, Art. 14(3).

54

See Human Rights Watch, http://www.hrw.org/sites/ default/files/related_material/Letter%20CambodiaHRW-ECCC%20Rules%2011.17.06_0.pdf

44

Jurisdictional Immunities (Germany v. Italy), Judgement, 3 February 2012.

45

Ibid. § 91.

55

De Silva et al, p21.

46

Ibid. § 91.

56

47

ECtHR, Jones and Others v the United Kingdom, Application nos 34356/06 and 40528/06, Judgement, 14 January 2014.

Eg. The UN Commission of Inquiry tersely states that the national justice system is ‘not a viable option to ensure accountability’, 2013, p124.

57

Charney and Quirk, p7.

48

Ibid. §§ 212-215.

58

See supra n34.

49

Kiobel v. Royal Dutch Petroleum Company, 133 S.Ct. 1659 (2013).

59

See Ireland-Piper. But see also Rome Statute, Article 20.

50

TVPA, section 2(a). Under 2(b) a court can decline to hear a claim if the claimant ‘has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred’.

60

See International Covenant on Civil and Political Rights, Art. 2(3); Arab Charter on Human Rights, Art. 23.

33 Bibliography

Amnesty International, Universal Jurisdiction and the Absence of Immunity for Crimes Against Humanity, AI Index: IOR 53/003/2001 (London, AI, 2001) Bockel, Bas Van, The ne bis in idem principle in EU law (The Hague, Kluwer Law International, 2010) Brody, Reed and Ratner, Michael (eds.), The Pinochet Papers (The Hague, Kluwer Law International, 2000) Charney, Craig and Quirk, Christine, ‘He who did wrong should be accountable’: Syrian Perspectives on Transitional Justice (The Hague, Syria Justice and Accountability Centre, 2014) ‘Chautauqua Blueprint’, Draft Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes, Chautauqua Institute, 27 August 2013 Cronin-Furman, Kate, ‘Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity’, 7 International Journal of Transitional Justice 3, pp 434-454 De Silva, Desmond, Nice, Geoffrey and Crane, David M., A Report into the credibility of certain evidence with regard to torture and execution of persons incarcerated by the current Syrian Regime (London, Carter Ruck & Co, Solicitors, 2014) International Committee of the Red Cross (ICRC). Customary International Humanitarian Law Database, (Cambridge, Cambridge University Press). Retrieved from www.icrc.org/customary-ihl/eng/docs/ home Ireland-Piper, Danielle, ‘Prosecutions of Extraterritorial Criminal Conduct and the Abuse of Rights Doctrine’, 9 Utrecht Law Review 4, September 2013, pp 68-89 Lattimer, Mark and Sands, Philippe (eds.), Justice for Crimes against Humanity (Oxford, Hart, 2003) Liechtenstein Institute of Self Determination, ‘Accountability in Syria’, Meeting at Princeton University 17 November 2014 (New York, Permanent Mission of the Principality of Liechtenstein to the UN, 2014). Retrieved from http://www.regierung.li/files/medienarchiv/voelkerrecht/2014-11-17_Accountability_ in_Syria_summary_final.pdf?t=635546855830096915 . Princeton University Program in Law and Public Affairs, The Princeton Principles on Universal Jurisdiction (Princeton University, 2001) Stan, Lavinia, and Nedelsky, Nadya, (eds.), Encyclopedia of Transitional Justice, 3 vols. (Cambridge, Cambridge University Press, 2013) United Nations Commission of Inquiry, Fourth Report of the independent, international commission of inquiry on the Syrian Arab Republic, UN Human Rights Council, 5 February 2013, A/HRC/22/9 –, Eighth Report of the independent, international commission of inquiry on the Syrian Arab Republic, UN Human Rights Council, 13 August 2014, A/HRC/27/60 –, Ninth Report of the independent, international commission of inquiry on the Syrian Arab Republic, UN Human Rights Council, 20 February 2015, A/HRC/27/60 United Nations General Assembly Resolution 377 (‘Uniting for Peace’), 3 November 1950, A/RES/377(V). United Nations General Assembly Resolution, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 16 December 2005, A/RES/60/147 United Nations Security Council, Threats to international peace and security caused by terrorist acts, 24 September 2014, S/RES/2178. United Nations Security Council, Sixteenth report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2161 (2014) concerning Al-Qaida and associated individuals and entities, 29 October 2014, S/2014/770 Van Schaack, Beth, ‘Alternative Jurisdictional Bases for a Hybrid Tribunal for Syria’, Just Security, 29 May 2014

CEASEFIRE centre for civilian rights

A Step towards Justice: Current accountability options for crimes under international law committed in Syria The war in Syria is entering its fifth year with no end in sight. Regular allegations of mass atrocities continue to be made against both Syrian government forces and armed opposition groups. A year after the UN Security Council failed to pass a draft resolution to refer the Syrian situation to the International Criminal Court, the need to establish some form of accountability to address the widespread allegations of mass abuses remains urgent. This report considers the current options for seeking justice for crimes under international law committed in Syria, by looking at both their feasibility and their potential impact. It asks whether it is advisable to pursue justice while the conflict is ongoing and, if so, which methods are best suited for the current situation. By evaluating the positive and negative impacts as well as the practical and ethical concerns that could arise, the report aims to better inform the international community’s role in justice and accountability for Syria.

Ceasefire Centre for Civilian Rights 54 Commercial Street, London E1 6LT, United Kingdom [email protected]